REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 406 OF 2008

Vaman Narain Ghiya ...Appellant

Versus

State of Rajasthan ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.Challenge in this appeal is to the order passed by a learned Single

Judge of the Rajasthan High Court at Jodhpur, rejecting the application for

bail filed by the appellant. An earlier application for bail filed by the

appellant was also rejected by the High Court by order dated 15.12.2003.

Allegation against the appellant was that he is involved in several nefarious

activities of smuggling of antiques particularly the idols to foreign countries

for heavy sums of money.

2.Stand of appellant before the High Court was that he was discharged

of offence punishable under Section 413 of the Indian Penal Code, 1860 (in

short the ‘IPC’) by the trial Court and therefore he was facing trial only for

the offence triable by the Court of Magistrate, i.e. under Sections 457, 380

and 411 IPC. It was the stand of the appellant that the evidence of the

prosecution witnesses was not sufficient to secure his conviction in respect

of any of the charges. It was pointed out that evidence of seven witnesses

have been recorded and none of them has implicated him in the crime.

There is no recovery from him and other co-accused persons similarly

situated namely, Madam Mohan Agarwal and Manoj Sharma had been

enlarged on bail. Out of 10 cases registered against him, he has been granted

bail in six cases. He is in jail for more than 2 ½ years and in any case he is

entitled to bail in view of the provisions contained in Section 437 (6) of the

Code of Criminal Procedure, 1973 (in short the ‘Code’). The State opposed

the bail application on the ground that in an identical case the application of

the applicant was rejected by the Jaipur Bench and the matter was carried to

this Court and no interference was made. Further the order of discharge in

respect of offence punishable under Section 413 IPC was challenged by

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filing a revision before the High Court. Considering the aforesaid aspects

the prayer for bail was rejected.

3.Learned counsel for the respondent submitted that though the

proceedings have been stayed and several cases have been clubbed together,

the charge sheet was filed on 27.9.2003 and on 21.4.2005 the order of

discharge was passed. Subsequently, the order of discharge has been set

aside by the High Court in S.B. Criminal Revision No.817 of 2005. The

same order of discharge was challenged before this Court in Criminal

Appeal No.1585 of 2007 which was dismissed as withdrawn. The only

distinguishing feature pointed out by the appellant to seek reconsideration

of the prayer for bail was the order of discharge. As noted above, the same

was set aside by the High Court. Appeal against the same has been

dismissed as withdrawn.

4.Section 439 of the Code reads as follows:

“439. (1) A High Court or Court of Session may direct -

(a) that any person accused of an offence and in custody

be released on bail, and if the offence is of the nature

specified in sub-section (3) of Section 437, may impose

any condition which it considers necessary for the

purposes mentioned in that sub-section;

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(b) that any condition imposed by the Magistrate when

releasing any person on bail be set aside or modified.”

(underlined for emphasis)

5.It is clear from a bare reading of the provisions that for making an

application in terms of Section 439 of the Code a person has to be in

custody. Section 438 of the Code deals with “Direction for grant of bail to

person apprehending arrest”.

6.In Salauddin Abdulsamad Shaikh v. State of Maharashtra (AIR 1996

SC 1042) it was observed as follows:

“Anticipatory bail is granted in anticipation of arrest in

non-bailable cases, but that does not mean that the

regular court, which is to try the offender, is sought to

be bypassed and that is the reason why the High Court

very rightly fixed the outer date for the continuance of

the bail and on the date of its expiry directed the

petitioner to move the regular court for bail. That is the

correct procedure to follow because it must be realised

that when the Court of Sessions or the High Court is

granting anticipatory bail, it is granted at a stage when

the investigation is incomplete and, therefore, it is not

informed about the nature of evidence against the

alleged offender. It is, therefore, necessary that such

anticipatory bail orders should be of a limited duration

only and ordinarily on the expiry of that duration or

extended duration the court granting anticipatory bail

should leave it to the regular court to deal with the

matter on an appreciation of evidence placed before it

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after the investigation has made progress or the charge-

sheet is submitted”.

(Emphasis supplied)

7.In K.L. Verma v. State and Anr. (1996 (7) SCALE 20) this Court

observed as follows:

“This Court further observed that anticipatory

bail is granted in anticipation of arrest in non-bailable

cases, but that does not mean that the regular court,

which is to try the offender, is sought to be bypassed. It

was, therefore, pointed out that it was necessary that

such anticipatory bail orders should be of a limited

duration only and ordinarily on the expiry of that

duration or extended duration the court granting

anticipatory bail should leave it to the regular court to

deal with the matter on an appreciation of evidence

placed before it after the investigation has made

progress or the charge-sheet is submitted. By this, what

the Court desired to convey was that an order of

anticipatory bail does not enure till the end of trial but it

must be of limited duration as the regular court cannot

be bypassed. The limited duration must be determined

having regard to the facts of the case and the need to

give the accused sufficient time to move the regular

court for bail and to give the regular court sufficient

time to determine the bail application. In other words,

till the bail application is disposed of one way or the

other the court may allow the accused to remain on

anticipatory bail. To put it differently, anticipatory bail

may be granted for a duration which may extend to the

date on which the bail application is disposed of or even

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a few days thereafter to enable the accused persons to

move the higher court, if they so desire.”

(Emphasis supplied)

8.In Nirmal Jeet Kaur v. State of M.P. and Another (2004 (7) SCC 558)

and Sunita Devi v. State of Bihar and Anr. Criminal Appeal arising out of

SLP (Crl.) No. 4601 of 2003 disposed of on 6.12.2004 certain grey areas in

the case of K.L. Verma’s case (supra) were noticed. The same related to the

observation “or even a few days thereafter to enable the accused persons to

move the Higher Court, if they so desire”. It was held that the requirement

of Section 439 of the Code is not wiped out by the above observations.

Section 439 comes into operation only when a person is “in custody”. In

K.L. Verma’s case (supra) reference was made to Salauddin’s case (supra).

In the said case there was no such indication as given in K.L. Verma’s case

(supra), that a few days can be granted to the accused to move the higher

Court if they so desire. The statutory requirement of Section 439 of the

Code cannot be said to have been rendered totally inoperative by the said

observation.

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9.In view of the clear language of Section 439 and in view of the

decision of this Court in Niranjan Singh and Anr. v. Prabhakar Rajaram

Kharote and Ors. (AIR 1980 SC 785), there cannot be any doubt that unless

a person is in custody, an application for bail under Section 439 of the Code

would not be maintainable. The question when a person can be said to be in

custody within the meaning of Section 439 of the Code came up for

consideration before this Court in the aforesaid decision.

10.After analyzing the crucial question that when a person is in custody,

within the meaning of Section 439 of the Code, it was held in Nirmal Jeet

Kaur’s case (supra) and Sunita Devi’s case (supra) that for making an

application under Section 439 the fundamental requirement is that the

accused should be in custody. As observed in Salauddin’s case (supra) the

protection in terms of Section 438 is for a limited duration during which the

regular Court has to be moved for bail. Obviously, such bail is bail in terms

of Section 439 of the Code, mandating the applicant to be in custody.

Otherwise, the distinction between orders under Sections 438 and 439 shall

be rendered meaningless and redundant.

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11.If the protective umbrella of Section 438 is extended beyond what

was laid down in Salauddin’s case (supra) the result would be clear

bypassing of what is mandated in Section 439 regarding custody. In other

words, till the applicant avails remedies upto higher Courts, the

requirements of Section 439 become dead letter. No part of a statute can be

rendered redundant in that manner.

12.Section 438 is a procedural provision which is concerned with the

personal liberty of an individual who is entitled to plead, innocence, since

he is not on the date of application for exercise of power under Section 438

of the Code convicted for the offence in respect of which he seeks bail. The

applicant must show that he has ‘reason to believe’ that he may be arrested

in a non-bailable offence. Use of the expression ‘reason to believe’ that he

may be arrested in a non-bailable offence. Use of the expression ‘reason to

believe’ shows that the applicant may be arrested must be founded on

reasonable grounds. Mere “fear” is not ‘belief’ for which reason it is not

enough for the applicant to show that he has some sort of vague

apprehension that some one is going to make an accusation against him in

pursuance of which he may be arrested. Grounds on which the belief on the

applicant is based that he may be arrested in non-bailable offence must be

capable of being examined. If an application is made to the High Court or

the Court of Session, it is for the Court concerned to decide whether a case

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has been made out of for granting the relief sought. The provisions cannot

be invoked after arrest of the accused. A blanket order should not be

generally passed. It flows from the very language of the section which

requires the applicant to show that he has reason to believe that he may be

arrested. A belief can be said to be founded on reasonable grounds only if

there is something tangible to go by on the basis of which it can be said that

the applicant’s apprehension that he may be arrested is genuine. Normally a

direction should not issue to the effect that the applicant shall be released on

bail “whenever arrested for whichever offence whatsoever”. Such ‘blanket

order’ should not be passed as it would serve as a blanket to cover or protect

any and every kind of allegedly unlawful activity. An order under Section

438 is a device is secure the individual’s liberty’ it is neither a passport to

the commission of crimes nor a shield against any and all kinds of

accusations likely or unlikely. On the facts of the case, considered in the

background of legal position set out above, this does not prima facie appear

to be a case where any order in terms of Section 438 of the Code can be

passed.

13. “Bail” remains an undefined term in the Cr.P.C. Nowhere else the

term has been statutorily defined. Conceptually, it continues to be

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understood as a right for assertion of freedom against the State imposing

restraints since the U.N. Declaration of Human Rights of 1948, to which

Indian is a signatory, the concept of bail has found a place within the scope

of human rights. The dictionary meaning of the expression ‘bail’ denotes a

security for appearance of a prisoner for his release. Etymologically, the

word is derived from an old French verb ‘bailer’ which means to ‘give’ or

‘to deliver’, although another view is that its derivation is from the Latin

term baiulare, meaning ‘to bear a burden’. Bail is a conditional liberty.

Strouds’ Judicial Dictionary (Fourth Edition 1971) spells out certain other

details. It states:

“When a man is taken or arrested for felony, suspicion of

felony, indicated of felony, or any such case, so that he is

restrained of his liberty – And being by law bailable, offence

surety to those which have authority to bail him, which sureties

are bound for him to the Kings use in a certain sums of money,

or body for body, that he shall appear before the Justices of

Goale delivery at the next sessions etc. Then upon the bonds of

these sureties, as is aforesaid, he is bailed, that is to say, set at

liberty until the day appointed for his appearance.”

14.Bail may thus be regarded as a mechanism whereby the State

devolutes upon the community the function of securing the presence of the

prisoners, and at the same time involves participation of the community in

administration of justice.

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15.Personal liberty is fundamental and can be circumscribed only by

some process sanctioned by law. Liberty of a citizen is undoubtedly

important but this is to balance with the security of the community. A

balance is required to be maintained between the personal liberty of the

accused and the investigational right of the police. It must result in

minimum interference with the personal liberty of the accused and the right

of the police to investigate the case. It has to dovetail two conflicting

demands, namely, on one hand, the requirements of the society for being

shielded from the hazards of being exposed to the mis-adventures of a

person alleged to have committed a crime; and on the other, the fundamental

cannon of criminal jurisprudence, viz, the presumption of innocence of an

accused till he is found guilty. Liberty exists in proportion to wholesome

restrain, the more restraint on others to keep off from us, the more liberty we

have (See A.K. Gopalan v. State of Madras AIR 1950 SC 1000).

16.The law of bail, like any other branch of law, has its own philosophy,

and occupies an important place in the administration of justice and the

concept of bail emerges from the conflict between the police power to

restrict liberty of a man who is alleged to have committed a crime, and

presumption of innocence in favour of the alleged criminal. An accused is

not detained in custody with the object of punishing him on the assumption

of his guilt.

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17.Chapter XXXIII consists of Sections 436 to 450. Sections 436 and

437 provide for the granting of bail to accused persons before trial and

conviction. For the purposes of bail, offences are classified into two

categories, that is, (i) bailable, (ii) non-bailable. Section 436 provides for

granting bail in bailable cases and Section 437 in non bailable cases. A

person accused of a bailable offence is entitled to be released on bail

pending his trial. In case of such offences, a police officer has no discretion

to refuse bail if the accused is prepared to furnish surety. The Magistrate

gets jurisdiction to grant bail during the course of investigation when the

accused is produced before him. In bailable offence there is no question of

discretion for granting bail. The only choice for the Court is as between

taking a simple recognizance of the principal offender or demanding

security with surety. Persons contemplated by this Section cannot be taken

in custody unless they are unable or unwilling to offer bail or to execute

personal bonds. The Court has no discretion, when granting bail under this

section, even to impose any condition except the demanding of security with

sureties.

18.“Bailable offence” is defined in Clause (b) of Section 2 of the Cr.P.C.

to mean an offence which is shown as bailable in the First Schedule of the

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Cr.P.C., or which is made bailable by any other law for the time being in

force; and “non-bailable offence” means an other offence.

19.While considering an application for bail, detailed discussion of the

evidence and elaborate documentation of the merits is to be avoided. This

requirement stems from the desirability that no party should have the

impression that his case has been pre-judged. Existence of a prima facie

case is only to be considered. Elaborate analysis or exhaustive exploration

of the merits is not required. (See Niranjan Singh and Anr. v. Prabhakar

Rajram Kharote and Ors. AIR 1980 SC 785). Where the offence is of

serious nature the question of grant of bail has to be decided keeping in

view the nature and seriousness of the offence, character of the evidence

and amongst others the larger interest of the public. (See State of

Maharashtra v. Anand Chaintaman Dighe AIR 1990 SC 625 and State v.

Surendranath Mohanty 1990 (3) OCR 462).

20.We find no merit in this appeal which is dismissed accordingly.

……….………………………….J.

(Dr. ARIJIT PASAYAT)

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……….……………………….…J.

(Dr. MUKUNDAKAM SHARMA)

New Delhi,

December 12, 2008

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